Volume 154 — Georgia Reports

<p>Certiorari; from Court of Appeals. 27 Ga. App. 364.</p>

Equitable petition. Before Judge George-L. Bell. Eulton superior court. December 16, 1921.

<p>Indictment for murder. Before Judge Kent. Laurens superior court. January 30, 1922.</p> <p>Marshall Bass was indicted for the murder of his wife on November 30, 1921. He was tried and convicted. He made a motion for new trial, which was overruled. He sued out a bill of exceptions, and brought the case to this court to review that judgment. This court affirmed the judgment. Bass v. State, 152 Ga. 415 (110 S. E. 237). During the January term, 1922, of Laurens superior court, he filed his extraordinary motion for new trial on the ground of the newly discovered evidence of L. E. Watson, Mrs. H. C. Woodard, and J. W. Bass. In support of this motion the defendant attached thereto the affidavit of L. E. Watson, who deposed that on the night that the defendant shot and mortally wounded his wife, deponent was deputy sheriff of Laurens county; that he was notified 'of the shooting; that he started to the scene 'of the crime; that on his way he met the defendant between the town of Dublin and the place of the alleged crime; that the defendant was walking on a part of the unfinished bridge, which had'been about completed; that deponent stopped at the part of the bridge that had not been finished across the river; that, throwing the lights of his ear down said part of the bridge, he saw a person coming, and stopped and waited; that the defendant came right on to where deponent was; that when the defendant got to him he saw that he appeared to be drank, did not seem to recognize Mm, although he had known deponent for years; that he put the defendant in his car; that finally, after talking to him for some time, the defendant seemed to know him; that the defendant appeared to be drank, so much so that his reason was almost entirely dethroned; that he arrested the defendant and brought him to the county jail; that he appeared to be under the influence of whisky to the extent that he did not know — what he was doing, or what any one around Mm was doing; that in fact he appeared to be in a perfect state of drunkenness, to the extent that his reason was gone.; that when he was taken from jail by deponent .to be carried to Macon, it took four people to carry Mm from the jail to the car in which deponent took him to the train; that when defendant was on the train between Dublin and Macon he acted and talked like a drunk man, was sick and had all the appearances of a drunk man; that on the way to Macon he vomited lots, and showed all the signs of a drank man. Deponent is now the sheriff of Laurens County.</p> <p>In further support of his motion the defendant introduced the affidavit of Mrs. H. ,C. Woodard, who deposed, that she is personally acquainted with the defendant; that she lived in about two or three hundred yards of the house where defendant lived on the 30th day of November, 1920, when he shot his wife; that she was at the home of the defendant on Sunday, the 28th of November, 1920, before the killing on the following Tuesday; that the defendant was at that time in a drunken state, which was manifested by crazy or unusual actions; that he seemed to be out of his right mind; that she saw him most every day; that she lived near Mm and knew him well; that she was at his home on Tuesday, November 30, 1920, going there about ,12 o’clock and leaving about three o’clock; that he was in a drunken state at this time, acting out of the ordinary, apparently drank or crazy; that she saw him take a drink of whisky on said date at said place; that he left his home sometime in the afternoon while she was there; that Mrs. Helen Sheffield told her on Wednesday, after said shooting of Ms wife by the defendant, that she did not see the shooting, that she did not know anything about it until the shooting had taken place, that she did not see Marshall Bass there shoot liis wife, and that she was in the kitchen and could not see the same in her position. ■ jj'j j</p> <p>The defendant introduced also the affidavit of J. W. Bass, who deposed that he is the father of the defendant; that he was living at the home of the defendant on November 30, 1920, that he had been living there for a period of two weeks; that the defendant had been drunk from November 27 to the date of the killing, including Sunday, Monday, and Tuesday, that he was drunk at the time he shot his wife; that he saw him immediately before the shooting; that the defendant was in a crazy, drunken, and prolonged drunken stage and state; that the defendant did not know what he was doing; and that deponent could not reason with his son during any time of the three dajrs previous to the shooting of his wife.</p> <p>Also, the affidavit of B. S. Thomas and Eagan Hubbard, in which they deposed that they had known Mrs. H. C. Hubbard personally and well for 25 years; that she has a good reputation in the community in which she lives, and is well worthy of belief, and is of good character.</p> <p>Also, the affidavit of W. N. Watson, who' deposed that he was sheriff of Laurens county on November 30, 1920, when tire defendant, after shooting his wife, was brought to jail; that to the best of his knowledge the defendant was drunk, although he did not see him drink any whisky or any-other thing, but smelt something that smelt like whisky, and he believes it was whisky; that after Bass had been incarcerated in jail for a short while he was so drunk that it required the services of four men to put him into the car to take him to the train where he was to be transferred to the Bibb county jail; and that the defendant did not know any more than a dead man, according to deponent’s knowledge and belief, and he believes defendant to have been drunk.</p> <p>T. W. Watson made affidavit that he had known J. W. Bass for a period of four or five years; that Bass is a man of good character and morals in every respect, has a good reputation in the community in which he lives, and is well worthy of belief.</p> <p>The defendant made affidavit, that he had made a diligent search, for any and all evidence concerning his case, that he had exercised every effort that he possibly conld and had at his disposal in search of evidence; that he did not know that Mrs. H. C. Woodard knew anything about his case, or that she knew anything about what Mrs. Sheffield told her, or that she would testify in said case to anything, either material or immaterial in said case, until the 18th day of January, 1922, and until after the verdict of the jury had been rendered for several months; that she had informed him of the said conversation with Mrs. Sheffield and related to him the other facts in said case on said above date; and that Mrs. Woodard made an affidavit for the purpose of being used on his extraordinary motion for new trial.</p> <p>Counsel for the defendant deposed,'that they did not know of the newly discovered evidence of L. F. Watson, Mrs. H. C. Woodard, W. N. Watson, and part of the evidence of J. W. Bass, the father of the defendant; that they did not know of the existence of such evidence before the trial; and that the same could not have been discovered by the exercise of ordinary diligence.</p> <p>The court overruled the motion, and the defendant assigned error.</p>

Indictment for murder. Before Judge Eve. Tift superior court. January 17, 1922. J. M. S. Green was indicted for the murder of Daniel Sutton. The evidence for the State was as follows: Tom Barfield testified as follows: T am a son-in-law of Daniel Sutton. Was with him on Sunday, July 3, 1921. Went with the deceased late in the morning of that day to J. J. Cravey’s home.

<p>Indictment for possessing intoxicating liquor. Before Judge Wright. Walker superior court. May 4, 1922.</p>

Petition for injunction. Before Judge Ellis. Fulton superior court. April 26, 1922.

<p>1. A sale to a customer in this State, by a salesman or commission merchant resident in this State, of goods which are in another State, belonging to and to be delivered by the non-resident seller, for shipment directly to the buyer, is interstate commerce.</p> <p>2. A business or occupation tax or charge for a license to sell goods is in effect a tax on the goods themselves.</p> <p>3. Where a salesman or commission merchant in this State, acting as agent of a principal residing in another State, solicits and takes orders for goods for a prospective purchaser in this State, and tenders such order to the principal in another State, who ships the goods directly _fo the purchaser in this State in the original package, and receives from the purchaser in this State the price of the goods,. such salesman or commission merchant is engaged in interstate commerce; and such business can not be taxed as being a burden on interstate commerce.</p> <p>4. The court did not err in enjoining the collection of the tax against those named in Classes A and B, set out in the petition.</p> <p>5. Where resident brokers, salesmen, or commission merchants represent principals wholly outside of the State and some wholly within tlie State, and on the business done within the State the salesmen and brokers obtain orders from principals within the State, and the goods so purchased are delivered by the principals in the State directly to the purchaser within "the State, and tlie principals collect the price thereof from the purchaser, such brokers, etc., doing a domestic or intrastate business, are subject to a reasonable business tax imposed by the legislature. .The court did not err in refusing to enjoin the collection of the tax as against the plaintiffs in' error named in Class C of the petition.</p>

<p>1. Civil Code (1910) § 6028 does not apply to cases wliere tax executions are levied upon the property of the defendant in fi. fa., but § 1158 applies in suc-h cases.</p> <p>2. The transferee of a tax fi. fa. shall have the same right as to enforcing the execution and priority of payment as might have been exercised or claimed before the transfer.</p> <p>3. Under the pleadings and the evidence in the case the court erred in overruling the general demurrer to the petition, and in granting an injunction. 0</p>

<p>Indictment for murder. Before Judge B. C. Bell. Decatur superior court. January 14, 1922.</p>

<p>Eibel for divorce. Before C. H. Porter, judge pro hac vice. Floyd superior court. October 29,-1921.</p>

<p>Petition for injunction. .Before Judge Shurley. Wilkes superior court. January 25, 1922.</p> <p>Anthony Shoals Power Company filed a petition against A. C. Barnett, tax-collector, alleging in substance as follows: It owned a tract of land of about 2500 acres in Wilkes County, which it returned for taxation at a valuation of $17,479. The “local board of county assessors ” notified said company that after a careful scrutiny of the tax returns of the county the board had found said valuation • too low, and had valued and assessed the property for the year at $34,550 for land, and $15,000 for waterpower; total $49,550.00; and if not satisfied, to meet the board on June 26., 1920. The company met the local board of assessors on the date named, and on the hearing the board announced that it would insist upon the valuation and assessment. Petitioner asked for an arbitration, and selected Wm. A. Slaton as its arbitrator, who then and' there accepted the appointment. Without any notice the local board made-the following assessment: “Lands, 3445 acres,'$49,550.00.” Said action was contrary to the terms of the law under which they acted. The company had ho notice 'that such an assessment and valuation was contemplated, or that it had been made. Such action was “ contrary to the provisions of the constitution of the IT. S., that the rights.and property of no citizen can be taken from them except by due process of law.” Petitioner; before filing this suit, tendered to the tax-collector the amount it admitted to be due for taxes. The tax-collector issued an execution against petitioner for $1100, being the amount claimed to be due upon the assessment illegally made. The prayers were, for an injunction against the levy of the execution and the collection of the amount thereof; and for process.</p> <p>The defendant denied that the assessment was illegal, that there was any failure to give the notice required by law, and that petitioner demanded arbitration. He admitted the issuance of the tax fi. fa.; and insisted that “ the valuation of plaintiffs property was fixed at $49,550, after a full investigation and notice, which plaintiff received,” He alleged that in making the correction in the tax return the board gave immediate notice thereof, which plaintiff received; and that plaintiff did not demand any arbitration on the corrected returns.</p> <p>Evidence was introduced,' and the jury returned a verdict for the defendant. The plaintiff excepted.</p>

<p>1. Habeas corpus is never a substitute for a writ of error, or other remedial procedure to correct errors in the trial of a criminal case.</p> <p>2. This writ is the appropriate remedy only when the court was without jurisdiction in the premises, or where it exceeded its jurisdiction in passing the sentence by virtue of which the party is imprisoned, so that such sentence is not merely erroneous, but is absolutely void.</p> <p>3. The return of a verdict of guilty by the jury against the accused, without the introduction of any evidence, and without any instructions by the court, does not render the sentence of the court void; but the return of such verdict under such circumstances, if without the consent of the accused, was error which should have been corrected by a motion for new trial or writ of error.</p> <p>4. The judge below did not err in sustaining the demurrer to the petition for habeas corpus, and in quashing the writ.</p>

Injunction. Before Judge Kent. Laurens superior court. January 14, 1933. H. M. Livingston, W. M. Herndon, B. F. Harden, and J. T. Fountain filed their petition for injunction against W. J. Colter and J. I. Maddox, the sheriff of the city court of Dublin, in which they alleged as follows: On'September 1, 1917, there was issued out of the city court of Dublin a fi. fa. in favor of Armour Fertilizer Works against Henry White.

Indictment for mnrder. Before Judge Searcy. Spalding superior court. February 24, 1922. Grover Ison was convicted of the murder of Charlie Coggins, under an indictment which alleged that the homicide was committed by shooting the deceased with a pistol. The% exception is to a judgment refusing the defendant’s motion' for a new trial.

<p>Question certified by Court of Appeals (Cases Nos. 13307, •13340).</p>

Habeas corpus. Before Judge M. D. Jones. Bibb superior court. March 15, 1922. Lonnie Wadley filed a petition for habeas corpus against T. J. McCommon as jailer of Bibb County.

<p>Indictment for murder. Before Judge Hardeman. Fulton superior court. May 3, 1922.</p>

The Court of Appeals certified the following question (in Case No. 13530) : tc Is the ruling in Water Power & Mining Co. v. Arnold, 149 Ga. 107 (which was a case properly brought to the Supreme Court and pending in that court at the time of the adoption of the constitutional amendment of 1916), that ‘a writ of error in a case carried to the Supreme Court, which belongs to the class of cases of which the Court of Appeals, under the constitution,' has jurisdiction, is not…

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. April 10, 1922.</p> <p>Chief Justice Fish and Associate Justices Atkinson, Hill, and Hines being disqualified, Judges Hammond of the Augusta Circuit, Hodges of the Northern Circuit, Jones of the Northeastern Circuit, and Tarver of the Cherokee Circuit were designated to sit instead.</p>

<p>1. Where the judgment of the trial court, overruling a demurrer, was reversed by the Court of Appeals upon the ground that the petition failed to set forth a cause of action, and where, before the remittitur was made the judgment of the lower court, the plaintiff gave notice oí his intention to amend his petition, and had actually prepared and submitted his amendment for approval, and the court had directed him to submit the amendment to the opposite party so that the latter’s objections to the allowance thereof could be filed and heard, the court having informed both parties that they should be fully heard before anything would be done which would prejudice the rights of either party; and where the judgment, making the judgment of the appellate court the judgment of the lower court, was presented with full knowledge of the contents of the amendment, and was signed by the judge through misapprehension and by oversight, the trial court was not without jurisdiction to vacate the order making the judgment of the Court of Appeals the judgment of the trial court, and thereafter to allow the plaintiff to amend his petition, when this1 was done during the term at which the vacated order was taken.</p> <p>2. Where a claim against a bank, which has been taken over by the State superintendent of banks, has been rejected by him, when presented to him for payment, under section 3 of article 7 of the act of Aug. 16, 1919 (Ga. Laws 1919, p. 154), the claimant must bring suit against the bank to establish the justice of such claim, and not against the superintendent of banks.</p> <p>3. The only provision for suit against the State superintendent of banks being that contained in section 8 of article 7 of this act, the superintendent can only be sued in the superior court of the county in which the bank is located, and can not be sued in a city court.</p>